The Unclear Future of Contract Lawyers
Contract legal work has become the norm for many attorneys who, for whatever reason, are not engaged in a full-time legal practice. This type of work benefits not only young law graduates who are still searching for their dream job, but also seasoned attorneys who have taken a break from their practice. The equation is relatively simple: law firms assign certain type of work (more often than not, dreaded document review) to independent contract attorneys. The contract is either project-based or recurring for a number of weeks or months. The contract attorneys generally work a standard 40-hour week. That is, of course, unless they work more. Two contract attorneys in New York recently sued their respective firms for failure to pay them overtime. Lola v. Skadden, Arps, Slate, Meagher & Flom, Case No. 14-cv-3845 Lola v. Skadden, Arps, settled, while Henig v. Quinn Emanuel Urquhart & Sullivan, Case No. 13-cv-1432 Henig v. Quinn Emanuel, was dismissed by summary judgment. While the Fair Labor Standards Act requires overtime pay for all hours worked past 40 hours in a week, it contains a number of exemptions. One such exemption applies to attorneys who engage in legal practice. However, the contract attorneys in the Henig and Lola argued that document review did not constitute practice of law because it did not require legal judgment. Although one of the judges presiding over these cases acknowledged that contract work involved “tasks that are necessarily repetitive in nature” and “banal in character,” he nonetheless found the work legal in nature. Regardless of the outcomes of these two cases, it is undisputed that contract legal work is becoming more common for many large law firms who are receiving pressure from clients to lower their fees. Similar claims by contract attorneys seeking overtime pay will also undoubtedly increase in occurrence. One obvious solution is simply being upfront about work and pay expectations. If the firm uses the services of a recruiter in order to hire contract attorneys, ensuring that the recruiter is aware of this nuance is key. While this will possibly eliminate some candidates, it may avoid this type of litigation and the ensuing media attention.